THAKORLAL PRANLAL DESAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The appellants in these four Letters Patent Appeals are the petitioners in the Special Civil Application, out of which they arise. We propose to refer to the appellants as 'petitioners' in this judgment of ours.

(2.) The petitioners are teachers in Government Colleges. The Government Colleges are affiliated to the Gujarat University. There is no dispute that the petitioners are Government servants. As such, they would be governed by the Bombay Civil Services Rules, hereinafter referred to as "the Rules", framed under Art. 309 of the Constitution of India. Rule 161 of the Rules prescribes the age of superannuation of Government servants of the category of the petitioners as 58 years. The petitioners, the said Rule governing, cannot be in service beyond the age of 58 years But, they are in the field of coveting the age of 60 years for superannuation on the ground that the Government Colleges, in which they are working are affiliated to the Gujarat University, and as per the conditions of service prescribed by the authority under the Gujarat University Act, 1949, hereinafter referred to as 'the Act", governing the Gujarat University, the age of superannuation of teachers in the affiliated Colleges would be 60 years. For this purpose, the petitioners place reliance on the Resolution of the Executive Council dated 20-8-1977. But for affiliation to the Gujarat University, the Government Colleges in which the petitioners are working, service-wise of their staff, teaching and non-teaching, have nothing to do with the Gujarat University. The affiliation is the Jink. It is true that the Gujarat University, could make statutes through the University Court; pass Resolutions and Ordinances through Executive Council, and pass Resolutions and Regulations through the Academic Council. It is equally true that under Sec. 20 clause (xx), the Executive Council of the Gujarat University could issue instructions for ensuring proper conditions of service of teaching and non-teaching staff of the affiliated Colleges and under Sec. 20 clause (xxxix), the Executive Council could regulate the conditions of service of teaching and non-teaching staff of the affiliated Colleges. But these conditions of service to be prescribed by the Executive Council of the Gujarat University for the staff of the affiliated Colleges, must be made binding on the affiliated-Colleges. That could be done only by way of condition for affiliation. The provision therefor is found under Sec. 33(5)(j) of the Act which reads as follows :

(3.) We are not in the field of finding out as to whether the Executive' Council of the Gujarat University could act besides through Ordinances. We have already noticed that the Executive Council could also make Resolutions and those Resolutions could prescribe conditions of service for the staff of the affiliated Colleges. But, only if the conditions of service for the affiliated Colleges are prescribed through Statues, Ordinances and Regulations, they could be made binding on the affiliated Colleges. That is the mandate of Sec. 33(5)(j) of the Act. We cannot undo what the Statute has done, however liberal our mind may proceed to think towards the pleas of the petitioners. Plainly speaking the exercise of power could fruition into a binding result, only if exercised as per the mandate of the Statute. If the authority ewpowered could prescribe conditions of service of the staff of the affiliated Colleges only through the above processes or any of them permissible for it, certainly they must be held to be binding on the affiliated Colleges, be they so Government Colleges. But, this crucial link is lacking.